I’m sure it is better for all concerned that the dispute has been resolved through mediation. But it is worth noting that the ability to settle the dispute privately suggests that the embryos are being treated as property. Settlement of custody disputes require judicial review, because the state has its own interest in the well-being of children.

9 responses to “Embryo Case Settles”

If it didn’t settle a judge would have to decide what kind of case it was. I’m fairly confident a judge would not relate to it as a custody case. That would only occur if a judge was prepared to consider the frozen embryos to be children and that would have radial implications in many areas of law.

That pretty much leaves the judge considering the embryos as a form of property. She or he might then look to see what the terms of the agreement between the parties were, thus treating the case somewhat like a contract matter.

I’m quite concerned that the legal arguments and rulings in ART cases and Surogacy cases (even if they are settled out of court) have far reaching implications on a woman’s right to choose:
An egg belongs to the woman whose body produced it. It is her egg before and after it is fertilized and at no point does the fertilized egg belong to the body of the male whose sperm fertilized it. I would submit to you that it is her egg if it is fertilized inside her body (coitus/artificial insemination) and it is her egg if she chooses to have a doctor remove it from her body so that it can be fertilized in a lab by a tech with sperm from the male of her choosing (husband/anonymous provider/or egg purchaser’s husband). Again the resulting fertilized egg is hers just the same as if it were fertilized in her body. She has the right to decide to grow her fertilized egg into a person in her own body, she has the right to decide to grow her egg into a person in the body of another woman, she has the right to freeze her fertilized egg and table her decision to a later date or she has the right not to grow her fertilized egg into a person at all, she can destroy it (have an abortion).
It must remain hers it must not become considered property transferable for purchase it must not be considered property subject to community property laws in a divorce such that the husband might take one of her frozen fertilized and have it implanted in the womb of his new bride. It must not be considered partly the husbands lest he slap an injunction on his wife that would require her to grow her fertilized egg into a person. It must not be considered transferable for purchase because if part of a womans body can be sold and controlled by a purchaser then why not all? The fertilized egg must not be considered seperate from the body of the woman that created it just because it has left her body as if it were born because it has not been born and one must be born in order to be murdered as long as the fertilized egg is an extension of the woman it came from abortion is not murder of an individual with a seperate life. We must not be far from a time when instead of having an abortion a fertilized egg can be removed and transfered into the body of a woman who wishes to bear it and call it her own. What if the egg belongs to a woman who does not wish to reproduce herself, what then? Will she no longer have a choice because birth no longer begins at birth but at the moment the fertilized egg or embryo is disengaged from her body. No I say its dangerous territory
If a woman wishes to have her fertilized egg implanted into the womb of another woman who will give birth to it, that woman that gave birth should have to adopt the child from the man and woman that conceived it. Everything should be handled on top of the table and in a court of law to respect the right of the woman that the egg came from to make independant decisions about whether or not she wishes to reproduce. Childless couples would still get to have a family and barren women would still get to experience child birth but there would be no legal entanglements with indian surogates and there would be no issues about frozen embryos. She’ll let you be pregnant with it or she can take it back whatever she wants to do its her damn egg.

The issue of whether or not a woman can sell a part of her body – that its her decision, it sounds very liberating on the surface but we are not talking about her choosing to perform a service with her body at will we are talking about selling her body of which the fertilized egg is an extension, to be under the control of the purchaser. Once a precedent is set where her fertilized and unfertilized eggs are not part of her body but are part of her personal property or her net worth, then could she under certain circumstances be forced to sell them? Its not that much of a reach is it. Now in this case these people what, donated her frozen fertilized eggs to this other couple for them to use because she was not sure if she was going to turn them all in to people herself or not. She said if you don’t use them up by this date give em back. In my mind the way I think the law should see it is she will allow this other woman to become pregnant with and deliver her offspring. At birth she’ll need to give her offspring up for adoption to this other woman and frankly she should have the right to change her mind because she is that child’s mother.

One could legally differentiate between the time the egg is in the body and after the time it leaves the body.
Once an egg leaves the body, I do not see any rationale to treat it differently than sperm.
An embryo belongs to both partners and nothing should be done without the consent of both.

I think you are right that you could draw this distinction. A person has a right to bodily integrity and to control her/his own body. As long as a gamete is inside your body, it’s not hard to see it as being protected by that right. But once a gamete is out in the world, it’s not protected by that right. You can formulate other rights that might give the producer of the gamete rights, but these would be different. And that sort of right could be akin to a property right–it’s mine because I made it. In which case, I can choose to sell it. Or you could understand the right some other way. But I do think this is a plausible place to draw a line.

By the way, I reiterate my preference for the language “right to bodily integrity” instead of the more common “a woman’s right to choose.” Women do not have an inherent right to choose more than men do, but both have an inherent right to bodily integrity.
Thus there is no concern that a woman would be forced to carry the embryos even though they are joint property.

Kisarita
If the boyfriend of a girl does not want her to have an abortion he should have the legal right to prevent the abortion because the embryo attributes 50% of its genetic code to him? In my opinion his 50% authority and say so over that child only kicks in at birth when the child is born and begins life independent of the body of the female. I really think its critical that the law not equate the removal of the egg from her body (which is something the woman chose to have done) and its subsequent fertilization (which is something she chose to have done) as being equal in force to the birth of her child and therefore no longer part of her body under her complete control. I’m concerned that the law may treat the fertilized egg as being under the authority of the both the female and the male as if they were parents and not expectant parents – well if the law will allow them to destroy the frozen fertilized egg then the law is in conflict with itself because on the one hand its acting like the embryo is actually a baby that was born now independent with a mother and father and on the other hand the law is acting like its still an embryo inside the mothers body and can be aborted. Furthermore the concept of “embryo adoption” also makes out like an expectant mother can give her unborn child up for adoption, which if its in her belly she can’t. I’m not big on using intent in these situations, but clearly her intent was to grow independent human beings thats why she had her eggs removed fertilized and frozen – she is an expectant mother in my mind maybe she can carry her own child or maybe she’d need a surrogate should it really make any difference? Should she be able to give her offspring up for adoption prior to birth any more than if it were growing in her womb? What if a husband and wife get divorced and he wanted to keep the embryos? Could he make her give birth to them? Could he hire a surogate to do it or have his new wife give birth to them? Would he win this argument because he is opting to bring his offspring to life while she is trying to abort them or would it be considered murder? Would they just leave them in the freezer past the expiration date to avoid the whole discussion?

Marilyn, I am on the same side as you regarding reproductive rights, I just arrive at it differently. A woman can not be forced to be pregnant or to terminate a pregnancy, not by the state and not by her partner. That is because it is a violation of her bodily integrity. It is part of her body.

Wheareas if we were to decide the case based on property rights, we might indeed conclude that the embryo is in part the boyfriends, as it was made by his sperm as well, therefore he should have equal rights in the decision what to do with it no matter whose body it resides in.

In summary: A woman’s right to choose supercedes a man’s right to choose not because she has some inherent entitlement to the genetic material of both of them, but because her bodily
integrity is at stake.

I realize this does not solve the question of what to do with the embryos in the freezer in case of dispute.

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Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.